New Jersey Judge in Hot Water Over Tomato Comment

Under New Jersey law, the litigants can seek to remove a judge for a case or the judge can do it on his or her own accord.

Referring to the spouses as
"tomatoes" is enough to remove a judge from a divorce case, even if he also
happens to be Italian. Superior Court Judge Philip Maenza was
recently forced to recuse himself from a New
Jersey divorce case after one of the parties complained about his analogy.

Tobia Ippolito requested a new judge after he interpreted
Maenza's characterization of he and his wife as "the tomatoes in the case" as an
anti-Italian insult. He also alleged that the judge called him a "jerk" during
a conversation with a sheriff's officer.

In his defense, Maenza said he was referring to someone else
during the courtroom conversation. He further explained that he "attempted
to find 'common ground' with the litigants in an effort to explain the very
difficult and complex process of divorce litigation and used a tomato analogy
to make the point that divorce is ultimately distilled down to the basic facts
upon which the court applies the law."

Under New Jersey law, the
litigants can seek to remove a judge for a case or the judge can do it on his
or her own accord. Some of the most common reasons for recusal include:

The judge is closely related (second cousin or
closer) to one of the parties or attorneys in the matter;

The judge has been attorney of record or counsel
in the action;

The judge has given an opinion upon a matter in
question in the action; and/or

The judge is interested in the event of the
action.

The law also has a "catchall" for situations in which there
are other reasons which "might preclude a fair and unbiased hearing and
judgment, or which might reasonably lead counsel or the parties to believe so."

In most cases, judges are essentially allowed to "judge"
themselves when it comes to motions to recuse. The rationale is that the judge
has the most knowledge regarding the facts supporting or refuting an objective
ground for recusal, such as a relationship between the judge and one of the
lawyers. In cases that raise subjective objections, such as bias, the reasoning
is that the judge has the "best
insight to his or her mind."

In this case, Maenza appears to believe that he adhered to
his ethical obligations. However, he decided to recuse himself anyway in order
to avoid any further questions about his impartiality.

As Maenza explained in his decision, "the mere appearance of
bias in a judge – however difficult, if not impossible, it is to quantify – is
sufficient to erode respect for the judiciary."

"It is more vital to maintain the public confidence in our
system of justice than for this judge to sit on this case," he added.

Donald
Scarinci is a New Jersey lawyer and managing partner of Scarinci Hollenbeck,
LLC a regional law firm with offices in New York, New Jersey and Washington, D.C.
His columns feature legal issues in the news and articles about the business
and practice of law. He also writes regularly in Politicker NJ and the
Constitutional Law Reporter.